Monday, 17 September 2012

If you're looking for the Julian Assange article...

Welcome to Royal Gazette readers - the Julian Assange article that you read about may be found at this link

To clarify, I'm not saying that Julian Assange could take advantage of church sanctuary in Bermuda - the blog post just makes a comparison between his situation and a quirky and obscure aspect of Bermuda law.

Tuesday, 11 September 2012

Law report - sentencing - sexual exploitation of a young person

Miller v Crockwell [2012] SC (Bda) 47 (7 September 2012)

The Respondent, Crockwell, had been convicted of sexually exploiting a twelve year old girl. The maximum sentence was twenty years in prison if convicted in the Supreme Court, or five years if convicted in the Magistrates' Court. Crockwell had opted for the Magistrates' Court.

Crockwell was given  a custodial sentence of fifteen months by Magistrate Khamisi Tokunbo, suspended for two years. The appeal was on the grounds that the sentence was manifestly inadequate.

Kawaley CJ said that defendants under the age of 21 are able to claim a special defence that is not available to older offenders, namely that he believed the complainant was older than 14. Obviously, if the defence succeeds then the defendant will be found not guilty. However, the existence of the defence means that the offence is not seen as such a grave one if committed by an offender under the age of 21 than if it were committed by an older offender [41]-[45].

It follows that the Magistrate was not dealing with a case where an immediate custodial sentence was essential or the usual penalty [46]. Similar sentences had been given in the past.

There were special circumstances to justify a suspended sentence, namely that the offence was of a low gravity, he was 20 years old at the time of the offence, there was a low risk of reoffending, and he had family and church support and risked losing his job. Although he had not pleaded guilty, his defence was not based on making the victim out to be a liar, thereby increasing trauma to the victim [48]-[49].

 Kawaley CJ drew support from Bermuda Court of Appeal cases, such as Kirby v Durham [1989], which stated that the age of a defendant or the fact that he is a first time offender or unlikely to reoffend, might be "exceptional circumstances" which might justify a suspended sentence [50].

The Magistrate had erred in law by refusing to hear the victim impact statement [60], although he should not be overly cricitised for doing so as the Prosecution had delayed in serving it, such that it interfered with effective case management on a busy court day.

Nonetheless, the victim statement revealed what might reasonably have been expected in an incident such as this. The contents were not such to render the sentence manifestly inadequate [62]. It was not the Prosecution's submission that the failure to consider should mean that the defendant was re-sentenced. Stretching the matter out further would not be attractive for either the victim or the offender [63].

The public humiliation received by the offender will serve as a further deterrent over and above the sentence received [63].

The judge reported the victim's statement at [64] in order to inspire other victims of similar offences to come forward and to educate the offender and other perpetrators of such crimes about the impact on the victim.

Some guidelines were set out for future sentencing:
the only appropriate sentence in the Magistrates' Court for an adult offender with no previous convictions, for exploitation of a young person, is an immediate custodial sentence [87]. The starting point would be a sentence of around 18 months, which would be increased or decreased, depending on the circumstances.

The UK sentencing guidelines are persuasive on considering aggravating and mitigating factors [84].

Kawaley CJ also raised a couple of questions which might arise in the future:
Should the special defence given to defendants under the age of 21 (that they believed the child was over the age of 14) in fact only be available to defendants under the age of 18, when read in line with the Age of Majority Act 2001, which changed all reference to the age of 21 to age 18 in Acts of Parliament? [44]
Does the Constitutional requirement that the Courts be independent mean that Magistrates cannot be summarily removed from office? [73]

Wednesday, 5 September 2012

Law report, claiming costs when you represent yourself

Junos v Minister of Tourism and Transport [2012] SC (Bda) 46 Civ (31 August 2012)

A judgment of particular interest to unrepresented litigants (litigants in person or "LIPs") and parties facing a successful LIPs.

The following principles might be drawn in considering legal costs to be awarded to a LIP who was unemployed and / or did not suffer any pecuniary loss from representing herself:

In respect of any one item, regardless of how many hours a LIP spent working on it, the maximum that can be recovered is two thirds of what a solicitor could have recovered [7].

The starting point is how long a LIP spent working on an item, rather than a presumption that they will get two-thirds of what a lawyer could claim [8] (the presumption may apply, though, when the LIP has suffered loss from the time spent working on her case)

It might be appropriate to allow a LIP more time than would be allowed to a lawyer with administrative support [9]

Kawaley CJ declined to make any ruling at this stage on whether the $50 maximum rate for LIPs should be reduced and said it was a matter for the Registrar.

Comment - lawyers will be pleased to discover that these rules don't apply to LIPs who are themselves practising attorneys. A practising attorney is always able to recover their full costs (London Scottish Benefit Society v Chorley (1884) 13 QBD 872; In the matter of the Elcome Trust [2010] SC (Bda) 3 Civ)

Law report - extension of time in planning appeals

Desilva v Minister of Environment Planning and Infrastructure [2012] SC (Bda) 45 App (31 August 2012)

The Appellant had had 21 days to appeal against a planning decision (or such longer period as the Court may allow). He did not in fact appeal until some five months after the 21 days had expired.

He applied to extend time.

Kawaley CJ held that there is no obvious reason in principle why Order 3 rule 5 of the Rules of the Supreme Court should not apply regarding extension of time to appeal. He further held that the right of access to the court should be enjoyed only to the extent that it does not extinguish the right of an opposing party to a fair trial within a reasonable time [13]. There must be a good reason to justify extending time.

It was relevant that the Minister had himself routinely ignored the 21 day limit for filing appeals in the past. This may have led the Appellant and his architect to believe that the rules were relaxed in this context.

The case had some commercial importance to the Appellant, and the level of discretion in extending time was unclear, so time would be extended in this case.

However, the Appellant would be required to pay the Minister's costs

Law report - Import duty rates

Mailboxes Unlimited Ltd v The Collector of Customs [2012] SC (Bda) 43 Com (22 August 2012)

Mailboxes runs a business whereby customers order goods to an address in New Jersey. Mailboxes then takes custody of the goods and brings them into Bermuda.

Following the 2012 budget, Customs said that Mailboxes and similar importers did not qualify for business end use relief and would have to pay 25% duty on all imported items.

Mailboxes brought a summons against the Collector of Customs for a declaration and injunction that they qualified for the relief. They also sought an order regarding the procedure for filling out customs forms.

Counsel for the Defendant asserted that no injunctive relief was available in civil proceedings against the Crown, and Kawaley CJ accordingly struck out the application for an injunction (injunctive relief against the Crown is only available in limited circumstances, such as in judicial review proceedings).

Counsel for the Defendant also submitted that Mailboxes had followed the wrong procedure in bringing the claim by originating summons. Somebody who wishes to challenge assessment of customs duty may write to the collector of customs asking him to review it (s.122(2) Revenue Act 1898). The Defendant argued that may meant shall in this context [17]. Kawaley CJ cited the recent Digicel v CellOne decision where a statutory disputes resolution procedure was held to be an optional first recourse. He held that he had the discretion to refuse to consider the summons on the grounds that the Plaintiff had an alternative remedy [21], but that he would not in this case because it would require the dispute to be re-opened in another forum; the application to strike out had not been made early enough; there was a legal issue to be aired; it was unclear whether the statutory procedure would afford an applicant a fair hearing within a reasonable timeframe; and commercial realities requires giving priority to the right of access to the courts to enable speedy justice.

The question as to procedures for filling out customs forms, however, was appropriate to go through the statutory procedures [22]-[24].

This left the question of whether the plaintiff qualified for business end use relief.

Kawaley CJ held that the business end use relief applied to all importers who are importing the goods for the purposes of their own business, regardless of the ultimate use whether by a business or a consumer, - this goes far beyond just retailers [31].